Can Arkansas license a nurse who was convicted of arson out of state but later pardoned by that state's governor?

Plain-English summary

Sue Tedford, Executive Director of the Arkansas State Board of Nursing, asked the Attorney General about a nursing license endorsement applicant. The applicant had pleaded nolo contendere ("no contest") to first-degree arson in Oklahoma, the conviction had not been expunged, but the Governor of Oklahoma had pardoned the applicant. Could the Board issue an Arkansas nursing license?

Attorney General Leslie Rutledge concluded that no, the Board could not. Ark. Code Ann. § 17-87-312(l)(2) lists offenses that result in "permanent disqualification" from Arkansas nursing licensure. Arson, as prohibited in Ark. Code Ann. § 5-38-301, is one of those offenses. The opinion noted two important features of the statute: nolo contendere is treated the same as a guilty plea or conviction, and the bar is "permanent." A separate subsection of the statute, § 17-87-312(l)(1), allows expunged records to lift the disqualification for some offenses, but arson is not among those eligible offenses.

On the pardon issue, the AG drew on the Arkansas Supreme Court's view in State v. Irby that "a pardon does not obliterate the fact of commission of the crime and the conviction thereof." Combined with the plain statutory language, the AG concluded that an executive pardon, including one from another state, does not erase the disqualifying conviction for nursing licensure purposes. The opinion contrasted that with statutes like § 5-73-103 (firearm rights) and § 17-39-206 (polygraph examiner license) where the legislature has expressly made pardons restorative.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Arkansas's nursing-licensure disqualification statute, Ark. Code Ann. § 17-87-312, distinguishes between two tiers of criminal-record-based exclusions:

• Tier 1 (subsection (l)(1)): Lists offenses that disqualify an applicant by default, but where an expunged conviction may lift the disqualification.
• Tier 2 (subsection (l)(2)): Lists offenses that result in permanent disqualification regardless of expungement, including murder, kidnapping, rape, sexual assault, and arson as prohibited in Ark. Code Ann. § 5-38-301. The legislature treated these offenses as "of such serious nature" and so closely related to nursing work that no record-clearing remedy could restore eligibility.

A plea of nolo contendere ("no contest") under both tiers is treated the same as a conviction or a guilty plea. The applicant does not admit guilt but agrees not to offer a defense; for licensing-disqualification purposes, the legal effect is the same.

For the pardon analysis, the opinion relied on the foundational rule from State v. Irby that a pardon does not erase the historical fact of the commission and conviction of the crime. The Court there held that the constitutional disqualifications from public office under Ark. Const. art. 5, § 9 (including conviction for embezzlement) cannot be removed by a presidential pardon. The same reasoning carries over to statutory licensing disqualifications: the conviction stands as a fact of history even when the executive has remitted further punishment.

The opinion also noted instances where the Arkansas legislature has expressly made pardons restorative: § 5-73-103 (governor restoring firearm rights through a pardon explicitly so stating) and § 17-39-206 (pardon restores qualification for an intern polygraph examiner license). The contrast was significant: where the legislature wants pardons to restore eligibility, it says so. The nursing statute does not.

Why a foreign-state pardon does not change the analysis

The applicant's pardon came from the Governor of Oklahoma, not Arkansas. The AG's reasoning treats this as a non-issue. The disqualifying fact under § 17-87-312(l)(2) is the conviction (or nolo plea), and that fact does not depend on which jurisdiction's executive subsequently issued a pardon. The Arkansas statute looks at convictions for the listed offenses without reference to which jurisdiction issued them; the Board had determined that the Oklahoma arson conviction was not substantively dissimilar from the Arkansas offense. Once that conviction-equivalence determination was made, the pardon dimension was simply not enough to overcome the plain statutory text.

Common questions

Can someone with an arson conviction ever get an Arkansas nursing license?

Under the statute as it stood in 2019, no. Arson is in the permanent-disqualification tier of § 17-87-312(l)(2) and expungement is unavailable as a remedy. A person whose record had been expunged for an offense in the other tier (subsection (l)(1)) could potentially overcome the bar, but arson is in the more serious tier.

What about a federal pardon, or a presidential pardon?

The opinion did not address federal pardons specifically, but the underlying reasoning of State v. Irby suggests the same answer. Irby itself involved a presidential pardon and held that it did not remove a constitutional disqualification.

Why does the legislature treat some offenses this severely?

The opinion quotes the statute itself: the offenses in § 17-87-312(l)(2) are listed because of their "serious nature" and "the close relationship to the type of work that is to be performed." Nursing involves access to medications, vulnerable patients, and trust dependencies. The legislature decided that some criminal histories are categorically incompatible with that role.

Does this rule apply to all professional licensing in Arkansas?

No. Each licensing scheme has its own disqualification statute. Some, such as polygraph examiners and firearms eligibility, expressly recognize pardons as restorative. The nursing statute does not.

Does this opinion bind the Arkansas Board of Nursing in future cases?

AG opinions are persuasive but not binding. In practice, licensing boards typically follow them on questions like this, both because of the statutory text and because of the institutional practice of treating AG opinions as authoritative guidance.

Citations

Ark. Code Ann. §§ 17-87-312(l)(1), 17-87-312(l)(2), 17-87-312(l)(2)(L), 5-38-301, 5-73-103, 17-39-206; Arkansas Constitution art. 5, § 9; Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179; Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003); State v. Irby, 190 Ark. 786, 797, 81 S.W.2d 419, 428 (1935).

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2018-071
January 3, 2019
Sue A. Tedford, MNSc, APRN
Executive Director
Arkansas State Board of Nursing
1123 South University, Suite 800
Little Rock, AR 72204
Dear Ms. Tedford:

This is in response to your request for my opinion on the following question:

May the Board of Nursing license an endorsement applicant who has a criminal history that is not expunged but pardoned by a foreign state, and that offense [a plea of nolo contendere to the crime of arson] under the Nurse Practice Act of the State of Arkansas is considered an absolute bar to holding a nursing license under Ark. Code Ann. § 17-87-312(l)(2)?

RESPONSE

In my opinion, the answer to this question is "no." A nursing license applicant who has pleaded nolo contendere ("no contest") to, and thus was convicted of, one of the permanently disqualifying offenses listed in Ark. Code Ann. § 17-87-312(l)(2) is not eligible for licensure, regardless of whether the conviction has been expunged or the applicant has obtained a pardon.

DISCUSSION

A record of "a conviction or a plea of guilty or nolo contendere" to certain serious offenses results in a person's "permanent disqualification" from holding an Arkansas nursing license. One of those offenses is the crime of "[a]rson as prohibited in [Ark. Code Ann.] § 5-38-301."

Your request states that the applicant in question pleaded nolo contendere to first-degree arson in the State of Oklahoma. I have no specific information regarding the offense, but I gather your board has determined that the Oklahoma crime of arson is not substantively dissimilar from the Arkansas offense prohibited in section 5-38-301. I also note that according to the "Certificate of Pardon" submitted with your request for my opinion, the person in question was convicted of the offense. Under a plain reading of section 17-87-312(l)(2), therefore, the applicant in question is permanently disqualified from receiving an Arkansas nursing license because of the arson conviction.

With regard to the pardon, I have found no authority suggesting that a pardon nullifies the prohibitions or exclusions in section 17-87-312(l)(2). The crime happened, and the applicant was convicted of it. As the Arkansas Supreme Court has stated, a pardon "does not obliterate the fact of commission of the crime and the conviction thereof." Following that reasoning, and given the clear language of the statute, it seems unlikely that an executive pardon of a conviction for one of the serious offenses listed under section 17-87-312(l)(2), like arson, will ameliorate the permanent disqualification for licensure as required by the statute.

In conclusion, it is my opinion that an applicant who has been convicted of arson, whether within or without the State of Arkansas, is permanently barred from obtaining an Arkansas nursing license. The fact that such an applicant has received a pardon from the governor of the state where the offense occurred is irrelevant in light of the plain statutory prohibition based on the applicant's conviction of the specific crime.

Sincerely,
LESLIE RUTLEDGE
Attorney General